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Speaker 1: The Trump administration has rescinded an Obama era policy designed

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Speaker 1: to ensure that transgender students in public schools could use

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Speaker 1: bathrooms and locker rooms that align with their gender identity.

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Speaker 1: It came in the form of a letter issued yesterday

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Speaker 1: by the Education and Justice Departments, which said they need

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Speaker 1: to needed to quote further and more completely consider the

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Speaker 1: legal issues involved. The letter went on to say that

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Speaker 1: students retain protections against bullying and harassment, and that LGBT

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Speaker 1: students must be able to quote, learn, and thrive in

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Speaker 1: a safe environment. The legal questions center on the law

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Speaker 1: known as Titled nine, which bars discrimination on the basis

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Speaker 1: of sex, but doesn't specify how that requirement applies to

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Speaker 1: transgender people. What Title nine means for transgender bathroom rights

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Speaker 1: in public schools is also before the Supreme Court in

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Speaker 1: a case set for argument at the end of March.

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Speaker 1: With us to discuss all this is James Essex. He's

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Speaker 1: the director of the a c l Use LGBT and

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Speaker 1: HIV Project. He's also one of the lawyers for the

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Speaker 1: transgender student who's involved in the Supreme correct case. And

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Speaker 1: Neil McCluskey, director of the Institute for educational Freedom at

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Speaker 1: the Cato Institute. Neil. Let let me start with you.

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Speaker 1: We'll first of all, welcome to you both. Neil. Um.

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Speaker 1: What is your reaction to to the letter yesterday? Well,

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Speaker 1: I mean, I think that what the administration did was

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Speaker 1: probably the right thing, although I think that what's really

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Speaker 1: central here is to understand that we have really competing rights,

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Speaker 1: and I don't think there is any actually perfect answer

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Speaker 1: within the conflience of public schooling. Uh. It's absolutely a

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Speaker 1: concern of the federal government if transgender students or anyone

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Speaker 1: else is being discriminated against. UM. But by the same token,

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Speaker 1: there are certainly people, I think, who have legitimate claims

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Speaker 1: to privacy rights. It is certainly a new idea that

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Speaker 1: someone of a different biological sex would be using the

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Speaker 1: bathroom or the locker room with you. And so I

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Speaker 1: think what happened was the Obama administration rushed in to

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Speaker 1: try to do something that clearly thought was good good

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Speaker 1: before society had had a chance to discuss this or

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Speaker 1: really debate it, and without balancing or thinking a whole

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Speaker 1: lot about competing rights. And so I think this is

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Speaker 1: something that the federal government should not have uh stepped

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Speaker 1: into certainly not as quickly as it did, James. The

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Speaker 1: federal government has been blocked from even enforcing this guidance

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Speaker 1: by a Texas judge. So why the hurry to rescind

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Speaker 1: the guidance. Well, look, recidity of the guidance doesn't make

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Speaker 1: any sense to me at all. All students in this

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Speaker 1: country should be able to have an equal access to

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Speaker 1: an education and have the government make sure that they

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Speaker 1: have those kind of evil access right, And that's what

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Speaker 1: the guidance wants about. It's also what the underlying Statute

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Speaker 1: Title nine is about. And what's important to remember here

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Speaker 1: is the Education Department can as and I think it

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Speaker 1: just did turn its back on transgender students all across

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Speaker 1: the country and say to them point point, we will

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Speaker 1: not protect you. But the Education Department doesn't get to say,

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Speaker 1: at the end of the day, what cataline means. The

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Speaker 1: courts that get to design that. In courts have designed

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Speaker 1: the transgender students A are protected from discrimination in the schools,

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Speaker 1: and they've also said that transgender students are protected, including

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Speaker 1: the context of access to restrooms. Neil. Donald Trump and

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Speaker 1: people in his administration have talked about this as a

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Speaker 1: states rights issue. Um, we I don't think we would

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Speaker 1: say that in this day and age about say racial

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Speaker 1: discrimination or discrimination against women, that that ought to be

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Speaker 1: a matter for the states. Why should this be any

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Speaker 1: difference than the Yeah, I really don't like the framing

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Speaker 1: that they used, calling the states rights. I actually don't

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Speaker 1: think that states have specific rights. I think people have rights,

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Speaker 1: and so I have a problem with that. However, this

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Speaker 1: is actually the right move. I think when you think

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Speaker 1: about federalism is and federalism is the closer that decisions

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Speaker 1: are made that the people that they affect the better.

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Speaker 1: And when we're talking about changing social norms and desires

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Speaker 1: more as it makes more sense to let that happen organically,

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Speaker 1: let communities and people decide amongst themselves how they want

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Speaker 1: to deal with these changes, rather than having the federal

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Speaker 1: government all of a sudden say, no, we're going to

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Speaker 1: make this decision for you, despite the fact that they're

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Speaker 1: competing rights, despite the fact that people are still coming

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Speaker 1: to terms with what societal changes mean. I also think

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Speaker 1: it's important, though, to note that what the Department of

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Speaker 1: Education did here is not say to transgender students, we

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Speaker 1: will not protect you. In fact, they said quite clearly,

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Speaker 1: if you were bullied, if you are threatened, if your

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Speaker 1: tact this is something that we will deal with. What

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Speaker 1: they're saying is only that we don't think it's right

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Speaker 1: for the federal government to decide what your policy should

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Speaker 1: be about accessing locker rooms and bathrooms. We're talking about

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Speaker 1: the new developments and the debate over transgender bathroom use

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Speaker 1: by students bathroom used by the transgender students rather. Our

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Speaker 1: guests are James Essex of the a c l U

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Speaker 1: and Neil McCluskey of the Canoe Institute. James earlier, Neil

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Speaker 1: was talking about the rights on the other side. Aren't

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Speaker 1: there some legitimate both privacy and safety rights when it

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Speaker 1: comes to the other students that we have to take

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Speaker 1: into account when we talk about this issue. Well, look,

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Speaker 1: privacy is important to all of us um and privacy

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Speaker 1: in the restroom is absolutely important. But let's think about

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Speaker 1: this for a second. When you come into the restroom,

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Speaker 1: you don't see other people naked. If you see the

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Speaker 1: field of naked, it means you're doing something wrong, not

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Speaker 1: the other person. So we don't really have privacy concerns

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Speaker 1: in the restroom. The High school in Gloucester has dividers

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Speaker 1: between the urnals. They put up privacy strips to cover

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Speaker 1: the gas between the partitions in the stalls. No one

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Speaker 1: can see any anything in the restroom there. There are

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Speaker 1: I get that there are privacy concerns that people have,

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Speaker 1: but I think if you think through it, um, you

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Speaker 1: realize that there's really a new issue. And so what

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Speaker 1: we have is we have some fear mongering going on,

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Speaker 1: and I think that's very unfortunate. UM. The one thing

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Speaker 1: that that Neil has said that I agree with is that, yes, look,

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Speaker 1: the country is on a journey, um, towards greater understanding

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Speaker 1: of who transgender people are and the challenges that they say,

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Speaker 1: some the discrimination that they say in their lives. And

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Speaker 1: that's not because transgender people are new. Trans people have

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Speaker 1: been part of our society forever, and trans people have

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Speaker 1: been using restaurants and matched their gender however, and most

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Speaker 1: people have simply never noticed. Um. And what we need

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Speaker 1: on this point is we need some leadership, and that's

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Speaker 1: what we had from the Abom administration, and unfortunately, the

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Speaker 1: Trump administration has decided to lead towards greater problems in

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Speaker 1: less protections for trans people instead of towards uh, you know,

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Speaker 1: reaffirming and core American value of equality Neil. In fact,

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Speaker 1: this opened a rift in the Trump A. Trump administration.

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Speaker 1: Reports are that the Education Secretary Divorce resisted signing off

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Speaker 1: on the order A G. Jeff Sessions took it to Trump,

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Speaker 1: who side with him and told Vas to drop her opposition.

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Speaker 1: What does that say about sessions agenda on civil rights? Well,

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Speaker 1: the first thing I'd say is I have been involved

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Speaker 1: in any of that. I didn't see it or hear

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Speaker 1: it firsthand, and so I'm always hesitant to talk about

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Speaker 1: reports about agreements or disagreements that I'm not sure that

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Speaker 1: people are absolutely certain about. It sounded to me like

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Speaker 1: what Secretary Divace wanted was to say, well, we need

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Speaker 1: to make sure that their assurances that we will protect

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Speaker 1: transgendered students from bullying and intimidation, and that was put

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Speaker 1: in there um And I don't Also, I can't speak

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Speaker 1: to what was in uh the Attorney General's mind, but

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Speaker 1: I do think that there are a lot of people

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Speaker 1: who have lots of concerns beyond just bouncing different people's

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Speaker 1: rights about Was this the right mechanism to change policy?

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Speaker 1: Was it right to say with a Dear colleague letter

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Speaker 1: that we are now going to essentially change rules and

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Speaker 1: regulations that had meant something different at least in most

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Speaker 1: were many people's minds before that. It could have been

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Speaker 1: very good legal reason for what he wanted, where a

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Speaker 1: secretary divorce might have been saying, well, what's the educational

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Speaker 1: policy aspect of this? James? I want to ask you

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Speaker 1: about the Supreme Court case that you're involved in involving

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Speaker 1: a transgender boy named Gavin grimm uh at a high

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Speaker 1: school called Gloucester and Virginia and uh this the Obama

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Speaker 1: administration guidance was a central part of that case. What

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Speaker 1: does this latest development mean for your Supreme Court case? Well,

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Speaker 1: it's that it means uh much at all. And here's

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Speaker 1: why when the Court granted review, it granted review two

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Speaker 1: separate questions. One question was a question of was it

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Speaker 1: appropriate for the Federal Appeals Court that ruled for gannon

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Speaker 1: to um defer to this guidance that has just been repealed,

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Speaker 1: And certainly that question now that the guidance has been

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Speaker 1: repealed goes away. But the Court also accepted a separate question,

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Speaker 1: which is simply the straight up question of what does

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Speaker 1: Title nine mean in terms of transgender students and restrooms,

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Speaker 1: So that doesn't have to do with guidance at all,

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Speaker 1: and in the I expect the Court will design that question.

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Speaker 1: Is that James actually a bigger question in some ways?

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Speaker 1: Could this make this a bigger case because the Court

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Speaker 1: is gonna directly decide what Title nine requires? It is

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Speaker 1: an enormously important question for transgender people all across the

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Speaker 1: country and for school districts. Everybody needs to understand what

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Speaker 1: it is the law requires. We think the law clearly

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Speaker 1: requires um uh become decency in respect for transgender students,

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Speaker 1: including recognizing the reality of who they are, which means

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Speaker 1: that the only place that they can um realistically used

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Speaker 1: restrooms is the restrooms that are consistent with how they

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Speaker 1: live their lives. Neil, just about a minute here. Do

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Speaker 1: you agree? Or could the Supreme Court then the matter

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Speaker 1: matter back to the lower court to consider the new guidance.

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Speaker 1: Could this be a sort of off ramp for the

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Speaker 1: justices for now? Well, I'm not a lawyer, so I'll

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Speaker 1: probably have to defer to lawyers on this one. My

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Speaker 1: guests would be that the Supreme Court could do that,

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Speaker 1: But I do think that this is a question that's

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Speaker 1: going to stay with us of what does the sex

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Speaker 1: discrimination actually mean under Title nine? So I think it's

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Speaker 1: also possible that the Supreme Court might decide they want

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Speaker 1: to weigh in and sort of make a definitive definition

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Speaker 1: of that. James will give you the last word here, Uh,

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Speaker 1: what do you think about that offer? Ram possibility? We

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Speaker 1: only have about thirty seconds left. Look, it is a

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Speaker 1: possibility on the Court can decide to send the case

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Speaker 1: back to the lower courts. At wants to the school

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Speaker 1: district here has specifically asked the court to um decide

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Speaker 1: the broader question, and so have we on behalf of

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Speaker 1: gammon um and we'll now see what the court does.

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Speaker 1: I want to thank our guests James Essex of the

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Speaker 1: A c l U, LGBT and HIV Project talking about

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Speaker 1: uh the Trump administration action on transgender bathroom use, and

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Speaker 1: also Neil McCluskey of the Cato Institute. UH. We will

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Speaker 1: be talking more about this case when the Supreme Court

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Speaker 1: takes it up at the end of March. Coming up

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Speaker 1: on Bloomberg Law, we will talk to Bloomberg's Joana Sarah

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Speaker 1: about the fuzzy lines that surround the crime of insider

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Speaker 1: trading and a big decision from a federal appeals court

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Speaker 1: having to do with whether states can ban assault weapons.

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Speaker 1: A court there said that Maryland's ban on assault weapons

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Speaker 1: was indeed constitutional under the Second Amendment. That's all straight

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Speaker 1: ahead on Bloomberg Law with June Grosso and Greg Store.

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Speaker 1: This is Bloomberg